92 Decision Citation: BVA 92-08779
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-00 397 ) DATE
)
)
)
THE ISSUE
Entitlement to service connection for tendinitis of the
right great toe with degenerative changes of the first
metatarsophalangeal joint.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael A. Pappas, Associate Counsel
INTRODUCTION
The veteran had active service in the Army from May 1975 until
May 26, 1977, and from June 24, 1977, until June 1984. He also
had service in the Army Reserve.
The matter came before the Board on appeal from rating
decisions of the St. Louis, Missouri, Regional Office (RO).
An August 1988 rating decision denied the veteran's claim for
entitlement to service connection for tendinitis of the right
great toe and degenerative changes of the first metatarso-
phalangeal joint. A March 1989 rating decision of the RO again
denied his claim of entitlement. The notice of disagreement
with these actions was received in April 1989. The statement
of the case was issued in June 1989. The substantive appeal
was received in June 1989. A hearing was held before a hearing
officer at the RO in July 1989. A hearing officer's decision
was issued in December 1989. The appeal was originally
received at the Board on February 6, 1990. The case was
remanded by the Board for further development in July 1990.
The case was returned to the Board on December 31, 1991. The
appellant has been represented throughout his appeal by the
Disabled American Veterans. That organization submitted
additional written argument to the Board on February 13, 1992,
and the case is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in denying his
claim to entitlement to service connection for tendinitis of
the right great toe with degenerative changes of the first
metatarsophalangeal joint since he has presented evidence which
at least substantiates the high probability that this
disability was incurred in service. The VA, being unable to
assist the veteran in the development of his claim in securing
his service medical records, and being unable to factually
rebut his evidence, should now decide that the evidence is at
the very least in relative equipoise, and on that basis allow
the veteran's claim.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that preponderance of the evidence is
in favor of the veteran's claim for service connection for
tendinitis of the right great toe with degenerative changes
of the first metatarsophalangeal joint.
FINDINGS OF FACT
1. To the extent possible, all relevant evidence necessary
for an equitable disposition of the veteran's appeal has
been obtained by the agency of original jurisdiction.
2. The veteran was diagnosed and treated in service for
right great toe tendinitis beginning in January 1976 and
continuing through his second period of service.
3. The veteran's tendinitis of his right great toe was a
chronic condition, continuing into his post-service period.
4. The veteran's current tendinitis of the right great toe
and degenerative changes of the first metatarsophalangeal
joint are related to the treatment he received for
tendinitis of his right great toe while in service.
CONCLUSION OF LAW
Tendinitis of the right great toe with degenerative changes
of the first metatarsophalangeal joint was incurred in
service. 38 U.S.C. §§ 1131, 5107 (1992); 38 C.F.R. § 3.303
(1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The board finds initially that the veteran's claim is
"well-grounded" within the meaning of 38 U.S.C. § 5107(a)
(1992); that is, we find that the veteran has presented a
claim which is plausible. We are also satisfied that to
the extent possible all relevant facts have been properly
developed and that the statutory obligation of the
Department of Veterans Affairs (VA) to assist the veteran in
the development of his claim has been satisfied. 38 U.S.C.
§ 5107(a). Since diligent, though unsuccessful, attempts
have been made to locate the veteran's service medical
records, we see no likelihood that further efforts to that
end may prove fruitful. Nor do we see any other areas which
may be ripe for further development.
In order to establish service connection for tendinitis of
the right great toe and arthritis changes of the first
metatarsophalangeal joint, the facts, as shown by evidence,
must demonstrate that a disease or injury resulting in
current disability was incurred during active service or,
if preexisting active service was aggravated therein.
38 U.S.C. § 1131. Service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease incurred in service. 38 C.F.R. § 3.303(b).
Despite diligent efforts, the veteran's service medical
records cannot be obtained. An immediate post-service
report of medical history given by the veteran in September
1984 indicated a positive response to the question of
whether he ever had arthritis; but negative answers
pertaining to bone, joint or other deformity, or foot
troubles. A report of periodic examination for Reserve duty
purposes, in January 1986, makes no mention of any
complaints or findings of a right great toe impairment.
A service hospital outpatient treatment report of July 1986
indicates that the veteran reported a history of tendinitis
in the right great toe since 1976. Upon observation on that
examination the toe and the foot area were found to be
slightly red and a little puffy. The provisional assessment
was arthritis of the right first metatarsophalangeal joint.
The veteran reported for outpatient treatment in May 1987
with complaints of pain in his right great toe during the
previous week. He indicated that he had been told in part
that he had tendinitis. He was started on medication. In
June and July 1987 the veteran underwent a VA compensation
examination. Examination of the right great toe revealed
some slight tenderness at the junction of the first
metatarsophalangeal articulation. There was no gross
swelling or redness noted. There was no evidence of joint
effusion. The veteran's skin temperature, gait, and range
of motion at the first metatarsophalangeal articulation were
within normal limits. Upon X-ray examination of the right
foot there was revealed a narrowing of the first metatar-
sophalangeal joint with associated reactive bone sclerosis
at the articulating surface of the opposing bones. There
was no evidence of fracture or bone destruction. The
assessment of the radiologist was degenerative arthritic
changes of the first metatarsophalangeal joint.
In personal testimony before a hearing in July 1989 the
veteran indicated that he had not sustained any specific
injury to the right great toe while in service but that he
had been treated on several occasions for tendinitis, which
was attributed to wearing narrow boots. He testified that
he had wide feet and that he wore regular or narrow boots
which caused the problem. He referred to the first treat-
ment being in January 1976 in Germany and stated he was
subsequently treated for the same condition while in service
in October 1977 and September 1983.
Recent medical records of March 26, 1990 indicate that the
veteran has been treated for degenerative joint disease of
the right foot with postoperative infection. The veteran
had undergone a bunionectomy and was also diagnosed with a
streptococcal infection of the foot. The most recent
radiographic findings denote a mild degenerative change of
the first MP joint with marginal spurring. Mild soft tissue
swelling at that site was also seen. There was no evidence
of soft tissue calcification or bony erosion nor other
significant bony abnormality.
As we have indicated, the veteran has presented a claim
which is plausible. This claim is characterized by
testimony from the veteran outlining a pattern of treatment
for tendinitis of the right great toe while in service. It
is a well-settled principle that although interest of the
veteran may affect credibility it does not affect competency
to testify. Hatlestad v. Derwinski, U.S. Vet. App. No.
90-103 (March 6, 1991). The veteran's testimony appears not
only to be internally consistent, but is punctuated by
specific references to treatment instead of sweeping
generalization of disease or injury in service. We must
also consider the July 1986 examination of the veteran's
right great toe wherein he related to the examiner a history
of tendinitis in that toe since 1976. It is significant
that this information was disclosed almost one year prior to
the veteran's claim for service connection of the same
condition. Greater probative value should be given to
evidence that is spontaneously and contemporaneously
recorded. The July 1986 examination appears to be an
example of that maxim.
The veteran's sworn statements, unless sufficiently
rebutted, may serve to place the evidence in equipoise.
Cartright v. Derwinski, U.S. Vet. App. No. 90-28
(December 17, 1991). The additional evidence provided by
the notations from the July 1986 examination notations
certainly bolsters the veteran's argument that his evidence
is in relative equipoise. The veteran's service medical
records are unavailable and cannot be used to show whether
or not a disease or injury was incurred in service. Without
those records it is difficult to sufficiently rebut the
veteran's plausible, internally consistent and credibly
portrayed testimony simply by finding that incurrence has
not been clinically documented. Under 38 C.F.R. § 3.303(d),
service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. We find that the preponderance of the
evidence is in favor of the grant of the benefit sought,
ORDER
Entitlement to service connection for tendinitis of the
right great toe with degenerative changes of the first
metatarsophalangeal joint is granted.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JANE E. SHARP
PHILIP E. WRIGHT
*38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.